Schenck v. United States

About the Author

Oliver Wendell Holmes Jr. was born in Boston in 1841, the son of a famous writer and physician and his abolitionist wife. His family was part of the prominent literary and social circles of the day, with connections to such luminaries as Ralph Waldo Emerson. Holmes counted among his lifelong friends the writer Henry James and his brother, William. In 1857, he entered Harvard College, from which he graduated in 1861. Holmes enlisted to fight in the Civil War, and at age twenty he gained a lieutenant's commission in the Twentieth Massachusetts Volunteer Infantry and went to fight for the Union.

After mustering out, Holmes returned to Harvard, where he earned a law degree. He then worked as a lawyer and later taught at Harvard Law School, meanwhile also giving speeches and writing articles on the common law. He also served as associate and chief justice of the Massachusetts Supreme Judicial Court. In 1902 Theodore Roosevelt nominated Holmes to a seat on the US Supreme Court, a position he held until 1932, when he retired at age ninety.

Holmes, the author of the opinion of the court in Schenck v. United States, had a reputation as being one of America's foremost legal scholars in the late nineteenth and early twentieth centuries. As a veteran of the Civil War, Holmes had seen the dangers of seditious speech when left unchecked by legal action. In an 1897 Harvard Law Review article, Holmes wrote that “when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom,” a clear foreshadowing of his willingness to create limits to the First Amendment, as would be seen in the Schenck case.

Holmes's tenure as an associate justice on the Supreme Court was one that saw him consistently taking on cases related to the First Amendment, and it was through these cases that Holmes helped craft the very limits that he had written about nearly a quarter of a century earlier. In the Schenck case, Holmes supported the government's argument that the actions of Charles Schenck calling for refusal to serve by those summoned in the draft were a violation under the Espionage Act of 1917, contending that such actions had presented a “clear and present danger” to the United States with respect to national defense and that therefore such speech was not allowed. Less than a year later, however, Holmes wrote a dissent in the case of Abrams v. United States that maintained that the call for a strike in munitions plants did not constitute a violation of free speech because there did not exist a “clear and present danger” to the safety of the United States.

This seeming contradiction defined one of the great successes of Holmes as a member of the highest court in the United States: he believed strongly that there were moral limitations on the rights and freedoms guaranteed by the Constitution, but he also understood that those limitations must be in place only to protect the common good of the people. Through the artful combination of his opinion in Schenck v. United States and his dissent in Abrams v. United States, Holmes helped shape a legal precedent that would influence cases throughout the twentieth century regarding the limitations on free speech. It is for this reason that he is remembered by most legal scholars as an astute legal mind rather than a contradictory legalist.